Dress codes and discrimination

CANNES, FRANCE - MAY 18:  Marilou Berry, shoe detail, attends the "Inside Out" Photocall during the 68th annual Cannes Film Festival on May 18, 2015 in Cannes, France.  (Photo by Ian Gavan/Getty Images)

Workplace dress codes have hit the headlines recently with one employer reportedly sending a female employee home after she refused to wear high heels, JP Morgan Chase introducing a new, relaxed dress code and  the Advocate General considering whether a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination.

So what are the rules about company dress codes?  Most employers have a dress code policy. This can be for a number of reasons including to communicate a professional or corporate image, to ensure that customers or members of the public can easily identify staff or for health and safety reasons.  For example, the wearing of jewellery and certain items of clothing may be prohibited for employees working with machinery and those working with food may be required to tie their hair back or cover it.

Employers are entitled to have a policy that sets out a standard of dress and appearance for their organisation.  However, dress codes must not be discriminatory and should apply to both men and women otherwise an employer risks claims of unlawful discrimination on the grounds of sex, religion, disability or gender reassignment.

Some press reports have referred to the requirement to wear high heels as being sex discrimination because a man would not be required to wear high heels.  Treating a woman less favourably than a man in the same circumstances amounts to direct sex discrimination.  However, in the case of Smith v Safeway Plc, the Court of Appeal held that having different requirements for the women in a dress code will not amount to sex discrimination where the dress code applies a consistent standard of appearance and taken as a whole, rather than item by item, neither gender is treated less favourably in enforcing that principle.  What this means is that the dress code should not be more strict or onerous for one gender and should be enforced consistently.

The Employment Appeal Tribunal has held for instance that a dress code that required a man to wear a shirt and tie but women only to dress appropriately and to a similar standard will not necessarily be unlawful discrimination (Department for Work and Pensions v Thompson EAT 0254/03)

By contrast, a woman who was dismissed for refusing to wear a revealing low cut top was successful in her claim for sex discrimination as a man would not have been required to wear an equivalent uniform (Smith v Rees ET 251040/12)

As well as sex discrimination, dress codes can potentially give rise to other types of discrimination.  If an employer prohibits a transsexual person from wearing a skirt where other women are permitted to this could amount to unlawful discrimination on the grounds of gender reassignment.

Policies that restrict an employee’s right to wear items of clothing or jewellery that reflect their religious beliefs can also amount to unlawful discrimination on the grounds of religion.  These cases often involve balancing the competing interests of the employer’s aims of having a dress code with the impact on the employee. The case of Eweida v British Airways Plc 2010 attracted a lot of publicity.  BA operated a policy which forbade the wearing of visible jewellery.  The European Court of Human Rights upheld Ms Eweida’s claim of indirect discrimination.  She wished to wear a two inch cross on a necklace visibly as a symbol of her Christian faith. The Court held that the interference with Ms Eweida’s rights in this case could not be objectively justified.  While BA’s wish to project a certain corporate image was legitimate, the Court of Appeal had accorded it too much weight.  Ms Eweida’s cross was discrete, would not have detracted from her professional appearance and would not really have encroached on the interests of others.  The outcome may, however, be different if there were health and safety considerations.  For instance in the case of Chaplin v Royal Devon & Exeter NHS Foundation Trust a tribunal found that a Christian clinical nurse had not suffered indirect discrimination where the Trust did not allow her to wear a crucifix on a necklace at work.   It was held that the Trust’s policy could be objectively justified.  It pursued the legitimate aim of protecting the health and safety of staff and patients.

Employers must also bear in mind any disadvantage to disabled employees as a consequence of the requirements of a dress code.  The employer has a duty to make reasonable adjustments to remove the disadvantage to the disabled employee.

In the recent case of Achbita and another v G4S Secure Solutions NV the Advocate General considered whether a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination.  The AG’s conclusion was that it did not amount to unlawful direct discrimination.  The ban affected all employees equally, it was not based on stereotypes or prejudice against religious beliefs.  The employer’s objective was for  religious and ideological neutrality.  Such a policy was a legitimate choice given the wide range of clients to whom the company’s services were provided.   The imposition of the dress code was held to be appropriate and necessary for achieving this objective which could not be achieved by more lenient measures.